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CONSIDER THE VERDICT

 

 

The idea behind this exercise is to give the reader an opportunity to test his/her legal skills in the application of the law to a given set of facts or just as an exercise in ordinary logic. To gain the most from the exercise first read the article entitled ‘The Jury is out’ on the Matters of Interest page, reach your conclusion on the facts and then read the actual judgment of the Court below.

 

 


 

The following is the actual unreported judgment delivered by the Court.

Presiding Judge- The Honourable Justice P.B. Fourie

Counsel for the State-Advocate R. Daniels

Counsel for the Defence-Advocate K.J.Klopper 

 


IN THE HIGH COURT OF SOUTH AFRICA

[WESTERN CAPE HIGH COURT, CAPE TOWN]

Case No: SS47/2010

In the matter between:

THE STATE.                                

 

and

 

SITHEMBISO STEVEN MALASE

 

 

JUDGMENT DELIVERED:  24 MAY 2011

 

FOURIE, J:

 

[1]     The accused is arraigned before this court on an indictment containing nine counts, namely 2 counts of murder (counts 1 and 2), one count of robbery with aggravating circumstances (count 3), one count of attempted robbery (count 4), three counts of attempted murder (counts 5, 6 and 7) and two counts under the Firearms Control Act No. 60 of 2000, relating to the possession of firearms and ammunition without the necessary licence, permit or authorisation (counts 8 and 9).

 

[2]     The accused pleaded guilty to counts 4, 8 and 9 and not guilty to the remaining counts. The State did not accept his plea on counts 8 and 9 and pleas of not guilty were recorded. He was convicted in terms of section 112 (2) of the Criminal Procedure Act on count 4.

 

[3]     Apart from his statement in terms of section 112 (2), the accused also made a written statement in terms of section 115 of the Criminal Procedure Act, in explanation of his plea of not guilty to counts 1, 2, 3, 5, 6 and 7. In addition thereto, the accused has made formal admissions in writing in terms of section 220 of the Criminal Procedure Act, which, to a certain extent, overlap with the admissions made in his section 112 (2) statement.

 

[4]     In view of the admissions made by the accused, as well as the evidence of the State which was not disputed by him, the following appears to be common cause:

 

  1. On Monday 2 April 2007, at approximately 9h30, the accused, together with 5 other men, went to the Caltex garage in Duinefontein Road, Manenberg, Disttrict Wynberg, where they intended to intercept security guards employed by Fidelity Cash Management Services (“Fidelity”), with the intention of taking the money which the security guards were to collect from a drop safe on the premises of the Caltex garage.
  2. The accused was armed with an unlicenced semi-automatic 9mm calibre parabellum Taurus pistol with two rounds of ammunition. The other members of the group were also armed, two of whom were in possession of automatic assault rifles akin to the well-known AK47 assault weapon.
  3. The accused and some other members of the group entered the shop on the premises awaiting the arrival of the Fidelity van. The group apparently planned to move in once the Fidelity guards had removed the cash box located in the drop safe on the premises.
  4. The Fidelity van arrived and parked close to the front door of the building in the vicinity of a glass cubicle which formed part of the building and in which the drop safe is located. One of the security guards (the deceased mentioned in count 1) proceeded to the drop safe, while a colleague of his (the complainant in count 5) stood guard in the area of the ATM which is on the left as one exits the front door of the shop. The driver of the Fidelity van (the complainant in count 6) remained in the vehicle in the driver’s seat.
  5. While the Fidelity guard was taking steps to remove the cash box from the drop safe, the robbers moved in and opened fire in the general direction of the Fidelity van and the security guards.
  6. At that stage Warrant Officer September of the SAPS was in the process of taking a statement in an unrelated case at a house approximately 150-200 metres from the Caltex garage. He heard the shots being fired. He immediately rushed to the scene which he reached within a few seconds and parked his unmarked police vehicle in Duinefontein Road, adjacent to the Caltex garage. Upon his arrival he saw the group of men still firing in the general direction of the Fidelity van. He alighted from his vehicle and fired one shot with his pistol in the direction of this group and one of the robbers fell to the ground. It was probably the accused who was wounded by the shot fired by September.
  7. The remaining members of the group then opened fire on September, who took cover and returned their fire. He saw the remaining five members of the group (excluding the accused) running away in the direction of the railway line to the north of the garage, and he moved closer to the scene. The fleeing members of the group continued firing at him and he discharged all the rounds in his pistol in their general direction.
  8. The accused admits that he had fired one shot in the general direction of the Fidelity van. After he had been wounded and had fallen to the ground, he lost control of his pistol. He was lying on the ground in the vicinity of the telephone booths close to the garage building. Other members of the group tried to pick him up to remove him from the scene, but were unsuccessful and then left him behind when they fled from the scene. Warrant Officer September detained the accused and confiscated his pistol.
  9. Mr. Jaffer, the owner of this Caltex Service Station, fired one shot from the glass cubicle with his firearm in the general direction of the road. He saw that three of the robbers had surrounded the security guard who was detailed to remove the cashbox from the drop safe. The security guard was on his knees and the robbers pulled him towards the safe. This security guard had not yet taken the necessary steps to remove the cashbox from the drop safe, with the result that the robbers were unsuccessful in obtaining the cashbox. In the process the security guard was fatally wounded in the abdomen. According to Mr. Jaffer the total amount of cash in the cashbox was R146 190-00.
  10. The security guard mentioned in count 5, Mr. Jakuja, who stood guard in the vicinity of the ATM, was not injured in the attack, but shots were fired in his general direction which caused damage to the building in the area of the ATM.
  11. The driver of the Fidelity van, Mr. Fourie, was not injured, but shots were fired by a member of the group armed with an assault rifle, in his direction. The shots struck the Fidelity van on the driver’s side where Fourie was sitting, and had it not been for the protective material with which the van was fitted, he would have been struck by these shots in the general area of the right side of his body. He then succeeded to drive the Fidelity van away from immediate danger.
  12. After Warrant Officer September had intervened, as described earlier, numerous shots were fired in his direction by the gang members, but he was fortunate enough not to be wounded.
  13. The security guard at the drop safe, who was fatally wounded, as described before, was armed, but his firearm, which was in a holster on his hip, was removed and is the subject of count 3.
  14. The deceased mentioned in count 2, Mr. Tshamlambo, who was the leader of the group who planned and executed the attack on the Fidelity van and its security guards, was shot in the back after crossing the railway line and died on the scene. He was probably struck by a bullet fired by Warrant Officer September who was engaged in the shoot-out with the fleeing group.

 

[5]     Due to the nature of the accused’s defence to which I will in due course turn, and his absence of any knowledge to the contrary, the versions of the various state witnesses were probed where facts required clarity and explanation, but were not seriously challenged. In view thereof, the extent of the common cause facts is such, that it is not necessary for me to analyse and evaluate the evidence of the respective witnesses called by the State. Against this background, it appears that the following facts relating to the various counts have been established with sufficient certainty to enable same to be considered by the court in establishing whether the guilt of the accused has been proved beyond a reasonable doubt. The proven facts relating to the different counts are the following:

 

Count 1

 

The deceased, Mr. Nkosiyane was in all probability shot during the engagement with members of the group of robbers while he was attempting to open the drop safe. At the time when he was shot, the deceased was surrounded by members of the group of robbers who were pulling him in the direction of the safe, as described by Mr. Jaffer. There is no evidence that the accused fired the shot which fatally wounded the deceased.

 

Count 2

 

The deceased, Mr. Tshamlambo, was fatally wounded when he, together with other members of the group, fled the scene. The accused was not part of the fleeing group as he lay wounded near the telephone booths. Tshamlambo was in all probability fatally wounded by one of the shots fired by Warrant Officer September in the direction of the fleeing group. There is no evidence to indicate that the accused shot at the police officer or was engaged in any activity that made it necessary at that time for Warrant Officer September to shoot Tshamlambo.

 

Count 3

 

One of the members of the group of robbers surrounding the security guard at the drop safe, took his firearm during the incident. This was witnessed by the cashier, Ms. Precious Mankayi, who testified that a tall slender man grabbed the firearm from the security guard. It is common cause that this was a 9mm pistol.

Count 5

 

Some of the members of the group of robbers, fired shots at the security guard, Mr. Jakuja. The defence concedes that, in firing shots at Jakuja, the only reasonable inference is that members of the group attempted to kill him. There is, however, no evidence that the accused fired any shots in the direction of Jakuja. Although Jakuja was armed he did not offer any resistance.

 

Count 6

 

A member of the group of robbers fired shots in the direction of Fourie, who was the driver of the Fidelity van. As explained earlier, the shots did not penetrate the armour of the vehicle in which he was seated at the time. The accused admits firing a single shot directed to the rear of the Fidelity van and not at Fourie. The defence concedes that the member of the group who fired the shots at Fourie, attempted to kill him.

 

Count 7

 

Members of the group fired shots at Warrant Officer September, as described earlier. The accused was not part of the group who exchanged fire with September. The defence concedes that in exchanging fire with September, the members of the group had the necessary intention to kill him.

 

Count 8

 

The accused was in possession of a 9mm pistol and two rounds of ammunition. The other members of the group of robbers, were also in possession of firearms. The remaining two firearms referred to in this count, namely the gas operated pistol and the .38 special revolver, were found in an open field near the escape route used by the fleeing members of the group after they were involved in the shootout with Warrant Officer September. The defence concedes that the other two firearms were physically possessed by members of the group who abandoned same during the escape. There is no evidence that the accused physically possessed these two firearms or that there was any prior agreement between the members of the group concerning these firearms.

 

Count 9

 

It is common cause that the accused possessed two rounds of 9mm ammunition. There is no evidence to indicate that the accused was aware of or had any knowledge of other ammunition in the possession of other members of the group. There is also no evidence of any prior agreement concerning the possession of such other ammunition.

 

[5]     I now deal with the evidence given by the accused. According to him he was approached by Tshamlambo on the Saturday before the Monday of the robbery. He was not part of the remainder of the group or involved with any planning with that group. Tshamlambo merely asked him to assist on the basis that the job would not be difficult and would be over quickly, as it would only involve the firing of shots into the air to scare the security guards and the taking of the cashbox. The task of the accused would be to take possession of the cashbox and deliver it to where the getaway vehicle was waiting. Tshamlambo was aware of the fact that the accused was desperate for money.

 

[6]        He testified that on the Monday morning he went to the Caltex garage with Tshamlambo and the rest of the gang followed them at a distance. He was handed the 9mm pistol by Tshamlambo. Tshamlambo instructed him to enter the shop at the garage and to wait until shots are fired, whereafter he would remove the cashbox.

 

[7]        According to the accused, he entered the shop as instructed, bought an Energade drink and waited until shots were fired outside. He then left the shop through the front door and fired one shot with his pistol. According to him he intended to fire the shot in the air, but it went off before he had sufficiently raised the firearm, and the shot was discharged in the general direction of the rear of the Fidelity van. He testified that he did not observe the shooting of the security guard at the drop safe, but there was no resistance by the guard and no reason to kill him. He denied that he had the intention to kill the security guard or that he had foreseen that someone in the group would do so. He also did not see who took this security guard’s firearm and explained that it was not part of the plan that firearms be taken from the guards.

 

[8]        He testified that he had not witnessed the circumstances in which Tshamlambo was killed. According to him it was never his intention that Tshamlambo be killed nor did he foresee this possibility. He was also not part of the group that fired at Warrant Officer September.

 

[9]     The accused similarly explained that he did not witness shots being fired at Jakuja, Fourie and Warrant Officer September. He testified that this had taken place contrary to the plan explained to him by Tshamlambo. According to him, he did not have the intention to kill any of the relevant persons.

 

[10] As mentioned earlier, the accused admits his possession of the 9mm pistol and ammunition. However, he denies that he possessed any of the other firearms or ammunition or that he intended to possess them, or that the group possessed them on his behalf. According to him, each person who possessed a firearm or ammunition did so for himself.

 

[11] In seeking the conviction of the accused on the various counts, the State was bound to rely on the doctrine of common purpose, particularly in view of the absence of direct or circumstantial evidence that the accused perpetrated the crimes or can be held responsible for them based on his own conduct. As explained by Snyman, Criminal Law, 5th edition, page 260, a person may be guilty as a perpetrator if, although his own conduct does not comply with that required in the definition of the crime, he acted together with one or more persons and the conduct required for a conviction is imputed to him by virtue of the principles relating to common purpose. The essence of the doctrine is that if two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, then the conduct of each of them in the execution of that purpose is imputed to the others.

[12] In S v Malinga & Others 1963 (1) SA 692 (A) at 694F, the application of the doctrine was explained as follows:

“The position is that once it has been proven that the participants formed a common purpose, such as to rob, each member of the group is criminally responsible for all the acts committed by any other member of the group, provided that each such member associated himself with the commission of such acts.”

 

[13] If there is proof of a previous agreement between the participants, it is relatively easy to make the inference that each participant associated himself with the others. However, if, as is most often the case, there is no proof of a previous agreement, the following five requirements must, according to the decision in S v Mgedezi 1989 (1) SA 687 (A) at 705I-706C, be complied with:

 

  1. The accused must have been present at the scene;
  2. The accused must have been aware of the conduct constituting the commission of the crime;
  3. The accused must have intended to make common cause with the person or persons committing the crime;
  4. The accused must have manifested his sharing of a common purpose by himself performing some act of association with the conduct of the others; and
  5. The accused must have the necessary intention to commit the relevant crime. In this latter regard, the accused must foresee the possibility that the acts of the participants may have a particular consequence, such as for example the death of a person, and reconcile himself to that possibility. It has often been held that it is not necessary for the accused to foresee in detail the exact manner in which the unlawful consequence occurs. See S v Molimi & Another 2006 (2) SACR 8 (SCA) at 19-20 (paragraph 33).

 

[14] With regard to the commission of crimes in the course of a robbery with the use of firearms, our courts have explained the relevant principles relating to the application of the doctrine of common purpose, as follows:

In S v Sibeko & Another 2004 (2) SACR 22 (SCA), three robbers, armed with two firearms, executed a robbery, whereafter they fled the scene in a motor vehicle. Approximately 6km from the scene of the robbery, they were confronted by the police. Two of the robbers ran away, while the third, one Hlomuka, fired several shots at a policeman who retaliated, and both of them were killed. On being charged with the murder of the policeman, the two remaining robbers argued that they could not have foreseen that the use of firearms would be extended to the situation where they were confronted by the police and that, by running away they actively disassociated themselves from the shooting of the policeman by Hlomuka. The Supreme Court of Appeal dealt with this submission as follows:

“The submission is without substance. They must have foreseen the use of the firearms in the event of encountering resistance during the robbery itself, and during the removal of the stolen goods to Soweto where they all lived. The fact that the appellants ran away leaving Hlomuka behind cannot absolve them from blameworthiness. Hlomuka’s usage of the firearm in his possession was in accord with the groups intention to use firearms to protect the stolen goods, to withstand capture and to facilitate escape.”

In S v Molimi & Another, supra at 20C, the Supreme Court of Appeal reiterated the principle as follows:

“The evidence shows that the first appellant initiated and then planned the robbery in collaboration with the second appellant and accused 1. It was foreseeable that in the execution of the robbery and during the flight of accused 1 and his fellow robbers, firearms might be used to overcome any resistance that they encountered. They reconciled themselves to this possibility.”

In S v Malinga & Others, supra, the Appellate Division held at 695A-B, that where one member of a group of robbers was armed with a loaded firearm with the knowledge of others in the group, all of them must have foreseen the possibility of that firearm being used against the contingency of resistance, pursuit or attempted capture.

Finally, in S v Khambule 2001 (1) SACR 501 (SCA), some members of a fleeing group of robbers fired shots at members of the police who were pursuing them. At the time of the shooting, one robber had already been arrested and one was hiding underwater in a stream. The court found that they were all correctly convicted of attempted murder of the police officials who were pursuing them, on the basis of the doctrine of common purpose.

 

[15] Before applying these legal principles to the relevant facts of this case, it is necessary to deal with the submission on behalf of the accused, namely that he should be found to have been an open and honest witness. I do not agree with this submission. It is true that the accused, contrary to the common practice of those who appear in court on charges of armed robbery, decided to testify and to explain to the court what went on in his mind at the time of the commission of the offences. However, it does not appear to me that he was frank and open with the court during his testimony. Firstly, he presents a strange and rather improbable version regarding his absence of knowledge of the details of the intended robbery. His alleged lack of knowledge did not only relate to the actual manner of execution of the robbery, but, according to him, he had no idea how much money would be robbed nor did he ask what payment he would receive for his services. There may be an innocent explanation for this lack of knowledge on his part, but his conduct on the scene does not accord with his version of the role that he was to play during the execution of the robbery. He was unable to explain why, if he merely had to grab the cashbox and run away, he had to be issued with a pistol and ammunition. His evidence is that there was no instruction given to him by Tshamlambo to use the firearm during the robbery, but his conduct as recorded on the CCTV footage, tells a totally different story.

 

[16] As appears from the footage, the accused produced his hidden firearm, while still in the shop, when he heard the shots fired outside. He exited the front door of the shop and fired a shot in the general direction of the Fidelity van. This was surely not the conduct of a hireling whose only task was to wait for the cashbox to be produced and to remove same from the scene. The accused tried to explain this conduct of his, by saying that he fired the shot to maintain the appearance that he was part of the group, otherwise they would have harmed him or his family. However, there was no basis at all on which he could have concluded that, if he did not act in this manner, the members of the gang would harm him or his family. He could not point to any conduct on the part of the other members of the gang or any other circumstance which could have led him to believe that the others would harm him if he did not participate by firing a shot.

 

[17] His evidence that he intended to fire a shot in the air, is also most unconvincing. If one has regard to the relevant video footage, it shows him aiming and firing in the general direction of the rear of the fidelity van. At that stage, the footage shows the accused to be standing virtually in the door of the shop, a most unlikely position if he intended to fire a shot in the air. Had he done so, the shot would probably have struck the roof of the building.

 

[18] I conclude that this conduct of the accused belies his alleged relatively innocuous participation, and rather shows that he was an active participant in the robbery, by utilising his firearm in accordance with the general conduct of the gang, which was to attack and thereby subdue, the security guards by the use of firearms to facilitate the taking of the cashbox.

 

[19] I now proceed to apply the relevant legal principles to the facts of the case. It is convenient to, once again, consider the various counts separately.

 

 

[20] Count 1

  This count relates to the death of the security guard, Nkosiyane. The evidence shows that this was a heavily armed group of robbers. The accused was aware that the other members were to be armed, as Tshamlambo informed him in advance that firearms would be used to scare the security guards off. The accused was also armed. Their purpose was to rob the security guards of the contents of the cashbox. To this end, their firearms would be used in order to overcome resistance. Surely, in these circumstances, the accused and his compatriots must have foreseen the possibility that their conduct, particularly by using their firearms to overcome resistance, may have particular consequences, such as the firing of shots in the direction of the security guards, which may even lead to the security guards being wounded or killed. In cross-examination and when questioned by the court, the accused conceded that it was logical and eminently reasonable in these circumstances to have foreseen a consequence such as the wounding or death of other people on the scene. It is also clear to me that, not only did the accused, as a member of the group, foresee these possible consequences, but that he reconciled himself to the possibility that same may eventuate. This is illustrated by his own conduct, whereby he actively associated himself with the other members of the gang by firing a shot in the direction of the Fidelity van. In my view, it has been proved, beyond reasonable doubt, that the accused is, by virtue of his common purpose with the other members of the gang, whereby they must have foreseen, and therefore by inference did foresee, the possibility of fatally wounding the security guards, guilty of murder on count 1.

 

Count 2

[21] This count is rather inelegantly worded in that it alleges that the accused was involved in the killing of Tshamlambo “by having him shot with a firearm”. As I have explained, Tshamlambo was the leader of the gang of robbers and was probably fatally wounded by a shot fired by Warrant Officer September in the direction of the members of the gang who fled from the scene. The State maintains that the killing of Tshamlambo was a foreseeable consequence of the conduct of the gang in committing the robbery with the aid of firearms. However, I have difficulty in accepting that it was part of the common purpose of the gang to kill one of their own members. It is true that it may have been foreseeable that one of the members of the gang may be fatally wounded in the course of the robbery, but what is required for a conviction on count 2, is proof of the necessary intention to murder Tshamlambo. It appears to me that one of the requirements for the application of the common purpose doctrine in these circumstances, is, in any event, absent. This is the requirement that the accused must have intended to make common cause with the person or persons committing the assault on Tshamlambo. I do not believe that it can be said that, in these circumstances, the accused intended to make common cause with anybody else to murder Tshamlambo. In the result, I find that the State has failed to prove the guilt of the accused in regard to count 2.

 

Count 3

[22] This is the count of robbery relating to the taking of the firearm belonging to the security guard, Nkosiyane, who was detailed to open the drop safe. In dealing with this count, it is necessary, firstly, to determine the nature of the crime committed. It appears to me that the evidence does not prove that the tall slender member of the gang who dispossessed Nkosiyane of his firearm, or any other member of the gang, did violence to the security guard with the intent to dispossess him of the firearm. It rather seems to me that the evidence shows that the violence which was done to the security guard, was intended to coerce him to assist the robbers in gaining possession of the cashbox. It therefore appears that the crime which was committed, was theft of the firearm and not robbery. In any event, I am not persuaded that the evidence shows that the theft of a firearm from one of the security guards was a foreseeable part of the common purpose of the gang who intended to rob the security guards of the cashbox.. The arrangement was to commit a robbery by forcefully taking the cashbox and not to commit theft of firearms. In the result I am not satisfied that the State has proved beyond reasonable doubt that the accused has committed the crime of robbery as alleged in count 3, or theft of the security guard’s firearm.

 

Count 4

[23] As I have mentioned earlier, the accused pleaded guilty to and was convicted on this count of attempted robbery of R146 190-00.

 

Counts 5, 6 and 7

[24] These are the counts of attempted murder of Jakuja, Fourie and Warrant Officer September. The reasoning applied in regard to count 1 above, similarly applies to these 3 counts. I am satisfied that on the evidence before me, the accused must have foreseen, and therefore by inference did foresee, the possibility that in the furtherance of their common purpose to rob, shots may be fired at the security guards to overcome their resistance and to facilitate the taking of the cashbox. The suggestion of the accused, that the plan was merely to fire shots in the air and that the security guards would then run away, is totally unconvincing. In any event, as conceded by the accused in cross-examination, the possibility always existed that the security guards may not have fled from the scene, but may have offered resistance. In these circumstances, it is obviously foreseeable that, to complete the robbery, shots may have to be fired at the security guards. Having regard to the evidence presented, it is, in any event, clear to me that, from the word go, the robbers had no intention to merely fire shots in the air, but rather to attack the security guards and to rob them of the cashbox. This is clearly illustrated by the evidence that the one member of the group fired several shots with an assault rifle in the direction of Fourie and had he not been protected by the armoured vehicle, he would surely have been fatally wounded. The evidence also shows that the other members of the group fired at Jakuja, while he was standing at the ATM. The accused’s own conduct also proves this point. As mentioned previously, when he reached the door of the shop, he immediately opened fire in the direction of the Fidelity van. In these circumstances, it is clear that the members of the group, including the accused, not only foresaw the possibility that shots would be fired in the direction of the security guards, but they also reconciled themselves with such possibility.

 

[25] As far as Warrant Officer September is concerned, the accused conceded that it was only logical to expect that members of the public, including policemen who may be in the area, may respond to the firing of shots and that they may become involved in a shootout with the robbers. In these circumstances, the accused and the other members certainly must have foreseen, and thereby by inference did foresee, that shots may be fired in the direction of such members of the public or a policeman who may come to the assistance of the victims of the robbery. The members of the gang reconciled themselves with this possibility and attempted to execute the planned robbery with the assistance of firearms. The fact that the accused was lying wounded on the ground, at the time of the shootout between September and the other members of the group, especially when the group was fleeing the scene, does not assist the accused. He was part and parcel of the group who planned and executed the robbery and at no stage did he disassociate himself from their common purpose. In fact, according to Warrant Officer September, the accused, while lying wounded on the ground, still attempted to reach for his gun. In S v Khambule, supra, the following was said at 510h-511b in regard to a similar situation:

“In die huidige geval was die rowers op vlug en het die polisiebeamptes hul aktief agtervolg. In die proses en klaarblyklik met die doel om die agtervolging stop te sit, hetsy deur afskrikking, hetsy deur verwonding of dood van een of meer van die agtervolgers, is daar op die polisiebeamptes gevuur. Ek meen dat die omstandighede dat die vyfde appellant op daardie stadium onder die water in die veld lê en wegkruip het, dat die sesde appellant reeds deur Earle gearresteer was en dat eerste, tweede en derde appellante besig was om in die veld weg te vlug, geeneen van hulle verskoon nie. Hulle het die rooftog fyn beplan en was tot die tande toe gewapen…. Al die beskuldigdes was teenwoordig toe een of meer van hulle op Potgieter gevuur het en het hulle daarmee versoen. Daar is geen bewys of tekens van distansiering deur enige een van hulle nie. Die vuur van die skote op Earle en De Beer (the police officers who pursued the fleeing gang) val myns insiens in dieselfde kader as die skietery op Potgieter en was deur al die appellante voorsien as ʼn uitvoeringshandeling as deel van die rooftog en noodwendige ontsnapping.”

 

[26] In the circumstances I am satisfied that the State has proved beyond reasonable doubt that the accused is guilty of the three counts of attempted murder specified in counts 5, 6 and 7.

 

[27] The issue to be decided in respect of counts 8 and 9, is whether the State has proved that the accused was in unlawful possession also of the additional two firearms and ammunition. The mere fact that an accused conspired with his co-accused to commit robbery, and even assuming that he was aware that some of his co-accused possessed firearms for the purpose of committing the robbery, does not lead to the inference that he possessed such firearms jointly with his co-accused. See Johannes Kwanda v The State, unreported, 2011 ZASCA 50. What is required, is that the State prove facts from which it can be inferred that the group had the intention to exercise possession of the firearms through the actual detentors and that the actual detentors had the intention to hold the guns on behalf of the group. See S v Mbuli 2003 (1) SACR97 (SCA).

 

[28] The evidence in the instant case is that all the members of the group were armed. What the evidence suggests, is that each individual member possessed a firearm and ammunition for himself. There is, in my view, no evidence from which an inference can be drawn that each of the members of the group, in fact, intended to possess his firearm on behalf of the other members of the group and that the other members had the intention to exercise possession of the other firearms through the actual detentors thereof. In the result, I find that the State has failed to prove that the accused is guilty of the unlawful possession of the other two firearms and ammunition. I do, however, find that his guilt in respect of the unlawful possession of the 9mm semi-automatic pistol and two rounds of ammunition, has been proved beyond reasonable doubt.

 

[29] The court accordingly makes the following finding:

 

  1. On count 1, murder, you are found guilty as charged.
  2. On count 2, murder, you are found not guilty and discharged.
  3. On count 3, robbery with aggravating circumstances, you are found    not guilty and discharged.
  4. On count 4, attempted robbery with aggravating circumstances, you   have already been found guilty as charged.
  5. On count 5, attempted murder, you are found guilty as charged.
  6. On count 6, attempted murder, you are found guilty as charged.
  7. On count 7, attempted murder, you are found guilty as charged.
  8. On count 8, you are found guilty of the unlawful possession of a firearm, to wit a 9mm parabellum calibre Taurus model PT92AFS semi-automatic pistol.
  9. On count 9, you are found guilty of the unlawful possession of ammunition, being two rounds of 9mm calibre ammunition.          

                                                                             _____________        

                                                                       P B Fourie, J    


     

     

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